229 P. 683 | Or. | 1924
Lead Opinion
The whole contention here is as to the construction of the following clause in the last paragraph of the contract:
“This contract not valid unless signed by twenty people, and should deficit occur each signer will be held responsible for their equal share.”
Without these words the contract would have been a joint contract, but we are clearly of the opinion that this clause makes it a several contract, upon which each signer must be sued separately for his proportionate share of the $1,250 alleged to be due: Hayden v. Pearce, 33 Or. 89, 91 (52 Pac. 1049); Gaines v. Vandecar, 59 Or. 187 (115 Pac. 721, 115 Pac. 1122); Gibbons v. Grinsel, 79 Wis. 365 (48 N. W. 255).
The addition of these words must be held to import an intention on the part of the signers to create a several liability or they are meaningless. This being the case, the court pursued the proper remedy in requiring the plaintiff to elect which of the several defendants he would proceed against in the action, and
The judgment will be affirmed.
Affirmed. Rehearing Denied.
Rehearing denied December 2, 1924.
Rehearing
On Petition for Rehearing.
(229 Pae. 1119.)
The words “with prejudice” used by the court below in dismissing plaintiff’s action added nothing to the significance or effect of the order. Plaintiff had brought an action against a large number of defendants upon a document which was in legal effect a separate agreement on the part of each signer to pay his share of a particular sum, and was just as much a separate and individual contract as if, instead of being included in one paper, each signer had signed a separate agreement upon a separate piece of paper. The court properly required plaintiff to elect as to which of the individual defendants he would proceed against, which he declined to do, and thereupon the court dismissed his case, “with' prejudice.” If this somewhat unusual phrase signifies anything in the connection there used, it means that plaintiff shall be precluded from bringing his action against the defendants in one complaint. His refusal to elect amounted, in effect, to a voluntary nonsuit, and the judgment does not pre
With this explanation our former opinion is adhered to. Rehearing Denied.
